Selfless surrender: defacto partner applies for Statutory Will to benefit mother and sisters (NSW)


Sadly, it’s not often I read of a case where the applicant/plaintiff’s endeavours lack self-interest. Given the nature of estate litigation, generally in a good portion of the cases, self-interest takes a front seat.  Of course, that doesn’t mean to say that it is greed or something sinister that drives a person to take certain actions; it could be a desperate need or unfortunate circumstances that encourage a claim. Nevertheless, it tends to be a rare situation where someone takes a positive step toward disclaiming an interest in an estate for the benefit of another.  This was the situation in this sad case.

In the case of Re LS [2017] NSWSC 1667 handed down on 30 November 2017, Rein J was called upon to determine a statutory will (or Court-Made Will, as it’s otherwise known) for a woman who was presently being held on life support following a tragic aneurysm and stroke earlier that month.  The plaintiff was her ‘de-facto’ partner of 20 years and despite having a marriage-like ceremony for the couple, the law did not yet recognise the same-sex couple as as a married couple. LS’s life support was due to be turned off on 27 November, once her sisters had travelled from New Zealand to be present.

The plaintiff sought the Courts approval to make a Will for her partner to ensure that her mother and sisters received some benefit from her estate.  LS was originally from New Zealand and still had assets in NZ to the tune of approx $800k and a further $500k in assets in NSW.

The plaintiff had two, now adult, children, and LS had no children of her own.  LS had no history of ever having made a Will.

If LS passed away without a Will, the plaintiff would receive all of LS’s assets in NSW and possibly all of her NZ assets as well, pursuant to the rules of intestacy.

Notwithstanding her likely interest in receiving the bulk (if not all) of her partner’s estate, the plaintiff asked the Court to make an order giving all of LS’s NZ real property to LS’s mother and sisters, a $50k gift to each of the plaintiff’s sons, and the residue to the plaintiff.

Interestingly, the mother and sisters had not been advised of the application at the date of the hearing. This is also a significant factor here as all interested parties must be informed of the application so that they may have their “say” in the outcome.

The Court allowed the application and made the order as requested by the plaintiff.  In doing so, the Court said, at paragraphs 17-19:

“Neither LS’s mother nor her sisters have been informed of this application.  There is evidence that LS’s mother is not, due to her upset at her daughter’s condition, in a position to receive information about the proposed Will. The Plaintiff did say candidly that she thought LS’s sisters, if informed of the application, might think that the Plaintiff was trying to make a “grab” for LS’s money.  I accept that generally speaking it would be necessary for a person’s mother and siblings to be informed for there to be ‘adequate steps’, but I have had regard to give important matters:

  1. LS has lived in a de facto relationship with the Plaintiff for 20 years.
  2. the proposed Will not only does not exclude LS’s mother and sisters, it positively provides that they are to receive more than half of the net assets of LS. Thus the persons who might have reason to expect a gift or benefit will have that expectation met.
  3. If the Will is not made there is a risk to the mother and sisters that they will receive no benefit from LS’s estate.
  4. The person with the most interest in the application is the Plaintiff herself, and the persons next interested are her sons.
  5. The matter is highly urgent and ‘adequacy’, in my view, is context dependant.

I think it is of crucial significance that the interests of LS’s mother and sisters are actually advanced, rather than adversely affected, by the proposed Will and, therefore, that if they were appraised of the details of the application they would have reason to support, rather than oppose, it.  Some support for this approach can be derived from the decision of Lindsay J in Scott v Scott [2012] NSWSC 1541, in which his Honour said:

Minor beneficiaries named in Marjorie’s 2003 Will (namely, her godchildren, the RSPCA and Ascham) have not been served with notice of the application. Nevertheless, I am satisfied, for the purpose of s 22(e) of the Succession Act, that, provided the modest provision made for them in the 2003 Will is maintained, they have no legitimate interest in the present application so as, by their absence, to impede its consideration.

I, therefore, not without some hesitation, have concluded that it is appropriate for the order sought to be made.”

You can read the case here.

Photo by Chungkuk Bae on Unsplash, with thanks.

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